STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2014-22528-S
					)
helena chemical company,					)
					)
Respondent.					)

AGREED ORDER

Complainant and Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent’s entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Helena Chemical Company (“Respondent”), which owns Helena Chemical Company located at 75 W 200 N, in Camden, Carroll County, Indiana (“Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail to Mike McCarty, President, Dustin Smith, Manager, and CT Corporation System, Registered Agent for Helena Chemical Company.

5. Helena Chemical Company stores and sells fertilizer used for agricultural purposes.

6. During an investigation including an inspection on March 10, 2014 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a spill that damages the waters of the state so as to cause death or acute injury or illness to humans or animals:

A. Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

B. Undertake or cause others to undertake activities needed to accomplish a spill response.

C. As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management.

D. Submit to the Department of Environmental Management, a written copy of the spill report if requested in writing by the department.

E. Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

i. For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and

ii. For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

As noted during the inspection, Respondent failed to report a spill of water containing liquid ammonium phosphate (10-34-0) into the J.B. Moore Drain tile, a tributary to Bachelor’s Run. The origin of the spill was Respondent’s above ground storage tank secondary containment area located at the Site.

b. Pursuant to IC 13-18-4-5(a), a person may not throw, run drain, or otherwise dispose into any of the streams or waters of this state, or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic, or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.

As noted during the inspection, Respondent unlawfully discharged from the above ground storage tank’s secondary containment area, releasing water containing liquid ammonium phosphate (10-34-0) to the surface and into the J.D. Moore Drainage tile, which leads to a tributary of Bachelor Run.

c. Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the board under the environmental management laws.

As noted during the inspection, Respondent discharged water containing liquid ammonium phosphate (10-34-0) into the J.D. Moore Drainage tile, which leads to a tributary of Bachelor Run.

d. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into the waters of the state as a point source discharge is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

As noted during the inspection, Respondent discharged water containing liquid ammonium phosphate (10-34-0), a pollutant, into the J. D. Moore Drainage tile, which leads to a tributary of Bachelor Run without a NPDES permit.

e. Pursuant to 327 IAC 2-1-6(a)(1), all surface waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges that do any of the following:

A. will settle to form putrescent or otherwise objectionable deposits;

B. are in amounts sufficient to be unsightly or deleterious;

C. produce color, visible oils sheen, odor, or other conditions in such degree as to create a nuisance;

D. are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses; and

E. are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants or humans.

As noted during the inspection, Respondent allowed water containing liquid ammonium phosphate (10-34-0) into J.B. Moore Drain tile, a tributary to Bachelor’s Run, a water of the state. The origin of the spill was Respondent’s above ground storage tank secondary containment area located at the Site.

7. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

II. ORDER

1. This Agreed Order shall be effective (“Effective Date”) when it is approved by Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with the rules listed in the findings above.

3. Within thirty (30) days of the Effective Date, Respondent shall develop and submit to IDEM, a plan to manage impacted rainwater and snowmelt that collects in secondary containment areas.

4. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Trent Lindley, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

5. Respondent is assessed and agrees to pay a civil penalty of Eight Thousand Seven Hundred and Fifty Dollars ($8,750.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

6. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

Paragraph	Penalty
Order Paragraph #3	$500 per week late

7. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

8. Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Cashier

100 North Senate Avenue

Indianapolis, IN 46204-2251

9. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 8, above.

10. This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

11. In the event that any terms of this Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if this Agreed Order did not contain the invalid terms.

12. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

13. This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

14. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

15. Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

16. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

17. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________,	20__.
				For the Commissioner:
				Signed on February 9, 2015_
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality